Leiden Law Blog

Association or dissociation? The Dutch Ukraine referendum and European democracy

It is two years ago that Ukrainian president Yanukovich’ government was overturned by the Euromaidan revolution, after he suspended the signing of Ukraine’s Association Agreement with the EU. As Europe’s eyes were fixed on the hostilities that followed, the actual signing of the document in the spring of 2014 passed by without much notice. That is until recently, when a citizens’ initiative signed by over 400,000 people called for a referendum on the ratification act which was recently passed by the Dutch Parliament. Overshadowed by that other EU satisfaction poll held across the North Sea, the referendum is met with a mixture of disinterest and raised eyebrows. Nevertheless, a Dutch ‘no’, much like a UK ‘out’, could have far-reaching consequences.

Confusion abounds. Many people don’t know what the Association Agreement is about exactly – or why we have to vote on it. And even if the public were to be informed, what can it possibly say on a technical and dense trade agreement of 2135 pages? Polls show that voters have little interest in the referendum, but of those who do, the majority is planning to vote against. For a more substantive discussion of the Agreement, I refer to a previous blog article. This blog will discuss the alleged democratic deficit of the agreement.

Geenpeil, the group that has initiated the Dutch referendum, says that the vote is not just about the Association Agreement itself. Their self-proclaimed goal is to bring more democracy to Europe. With this aim in mind, it has pledged to run an impartial campaign to bring people to the ballot box. The democracy argument always works, because it is difficult to counter. One will rarely hear someone advocate less democracy. But how democratic are Association Agreements exactly?

An Association Agreement, technically a treaty governed by public international law, is a document in which the EU lays down its international relations with third countries, on topics such as trade, migration, and political cooperation. It has been used since the early days of the European Community: the Union currently has around twenty Association Agreements with countries as diverse as Turkey, Chile and South Africa. The competence to conclude Association Agreements is laid down in articles 216 and 217 TFEU, according to which the European Union has the competence to conclude agreements “establishing an association involving reciprocal rights and obligations, common action and special procedure”.

The Association Agreement with Ukraine is a mixed agreement, which means that it is signed both by the EU itself and by each of the 28 Member States. Each of the parties has to ratify the agreement according to its national constitutional law, a process usually involving consent by the parliament. The Agreement enters into force once all parties have ratified it, but it was agreed that the bulk of the agreement will be provisionally applied before ratification (see article 486 and the accompanying Notice).

Not just the ratification of the agreement is a democratic process. In the process of negotiating and drafting, there is democratic oversight too. The procedure of adopting international agreements is laid down in article 218 TFEU. In short, it works as follows. The Council, deciding unanimously throughout the procedure, authorizes the opening of negotiations and appoints a negotiator, usually the Commission. The negotiator then enters into dialogue with the third country, following the negotiating directives given to it by the Council. When an agreement is reached, the Council authorizes the concluding and signing of the agreement, after obtaining consent from the European Parliament, which must approve the agreement but has no right of amendment.

Currently, the EU-Ukraine Agreement has been signed by all contracting parties, and ratified by most. Because the Dutch citizens’ initiative had to concern a legally binding act, it is the Dutch ratification act that is the subject of the referendum. This automatically reversed the Dutch ratification of the Agreement, even though it had already been approved by the Dutch Parliament. It has been questioned whether such a reversal is politically desirable and even if it is legally solid. After all, it means that not just a Dutch signature, but even a Dutch ratification of any international agreement cannot be considered final until the deadline for a referendum has passed. This no doubt does no good to Dutch diplomatic leverage.

Although the entry into force of the Agreement is suspended awaiting Dutch ratification, the provisional application is not. Parts of the Agreement have been provisionally applied since November 2014, and the Deep and Comprehensive Free Trade Area (DCFTA) which lies at the heart of the Agreement became operative on 1 January 2016. A reversal of its application is very unlikely as it would require consent from Ukraine and unanimity in the Council.

This means that a Dutch ‘nee’ can put the Dutch government in a very awkward position. The referendum outcome is advisory, not binding, but ignoring a negative vote could have serious political consequences on the domestic level. Following a negative advice however will be embarrassing to explain to our European colleagues. The Dutch would have to negotiate a kind of opt-out for the areas outside the Union’s exclusive competence, and explain why no such opt-out is needed for the similar agreements with Moldova and Georgia. Meanwhile a precedent has been set, and the Eurosceptic alliance that triggered the referendum can be expected to start targeting other EU-related laws. And all this while the Netherlands holds the rotating presidency of the Council!

Much has been said of the alleged democratic deficit of the European Union. But in the upcoming referendum and the public debate that precedes it, it is good to keep a few things in mind. The drafting and concluding of Association Agreements is a competence given to the Union by the Member States. The Agreement creates no new competences for the Union, and it is certainly not about EU membership. It is decided upon unanimously by the Council every step of the way, monitored and approved by the European Parliament, and ratified in each Member State according to its national law. If all this does not suffice to make the Agreement democratically sound, then it is hard to conceive that a referendum about which the public hardly cares will.

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